U.s. Wants Lawyer Off Tocco Case

Possible Conflict Of Interest Cited

January 30, 1989|By Ronald Koziol.

Federal prosecutors are seeking a court order to disqualify attorney Patrick Tuite from defending reputed south suburban mob boss Albert Tocco at an upcoming trial on racketeering and tax evasion charges.

The dispute arose partly because the government successfully persuaded Herbert Panice Sr., 67, a former Tocco underling and a former Tuite client, to testify against Tocco. Tuite, one of Chicago`s top defense lawyers, is contesting the government`s action.

The government argues that the representations could inadvertently give Tuite a foot in both the defense and prosecution camps.

Just as important, prosecutors say, is the fact that they may call Tuite as a witness against Tocco. Attorney rules of conduct bar a lawyer who is defending a client from appearing as a witness in a trial, for either the defense or the prosecution.

These issues were raised in a petition filed with U.S. District Judge James B. Moran last week by Lawrence Rosenthal and Dean Polales, assistant U.S attorneys.

The petition said that as a prosecution witness, Tuite could be asked if Tocco knew he was facing indictment when he escaped to Greece last fall-thus fleeing to avoid trial.

Tuite responded that he cannot become a witness because any conversations he has had with Tocco are protected by the lawyer-client privilege.

After fleeing, Tocco, 59, was tracked down in late December. He was arrested by FBI agents Jan. 5 after being expelled from Greece as an undesirable alien.

The government contends that while defending Panice at a trial in 1986, Tuite picked up information about Panice-Tocco dealings that could now be used to defend Tocco.

``Mr. Tuite has acquired privileged information concerning Panice`s prior bad acts, credibility and relationship with (Tocco) which would be invaluable in cross-examining Panice and structuring a defense to the pending charges,`` the prosecutors said.

``Mr. Tuite cannot protect the privilege and interest of Panice without limiting his ability to defend this case and he cannot fully defend this case without intruding upon Panice`s privilege and interests,`` the petition contended.

``My answer is that there is no conflict or anything confidential about my representation of Panice,`` Tuite said.

Panice was found guilty of racketeering and sentenced to three years in prison. Evidence at his trial showed that Panice operated a house of prostitution under mob sponsorship at the Show Lounge, a nightclub he then owned in south suburban Chicago Heights.

Tocco currently is charged with shaking down Panice and others for protection money, or ``street taxes.``

Panice is expected to testify that he paid Tocco $300 a month to avoid interference from law enforcment officals and the crime syndicate.

In discussing Tocco`s flight, the petition referred to FBI reports of conversations that prosecutors and agents had with Tuite while seeking Tocco. According to FBI reports, Tuite at various times said he had met here with Tocco Oct 3 and Sept. 30. Then, the reports say, Tuite said their last meeting was Sept 22. The petition contends that Tocco arrived in Greece Sept. 18.

The prosecution could call Tuite as a witness to question him about his meetings with Tocco.

Tuite previously represented Tocco in 1984 when the alleged mobster was acquitted of federal gambling charges.

The petition includes a report from undercover FBI agents who said they were with Panice when he learned of Tocco`s acquittal. ``Panice indicated that Tocco`s attorney, Pat Tuite, was the greatest thing since Italian sausage,``